Massive Fall Protection Rule Issued in Final Hours

By Mark A. Lies II, James L. Curtis, Patrick D. Joyce,
and Craig B. Simonsen, Seyfarth Shaw LLP

Editor’s note – Mark A. Lies II is an attorney and partner with the Chicago, Illinois, law firm of Seyfarth Shaw LLP. He practices in the areas of employment, occupational, safety, and health, and tort litigation.

James L. Curtis is a partner in Seyfarth Shaw’s Environmental, Safety, and Toxic Torts Group and co-chair of Seyfarth’s Whistleblower Team. Patrick D. Joyce is an associate attorney in the Environmental, Safety, and Toxic Tort Group practicing in the areas of occupational safety and health, environmental litigation, environmental counseling, and construction litigation.

Craig B. Simonsen is a senior litigation paralegal with the Seyfarth Shaw Labor and Employment, Litigation, Workplace Safety and Health, and Environmental Compliance, Enforcement, and Permitting Practice Groups. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.

Despite a congressional request that agencies not move forward on new regulations during the transition to the new administration of United States President Donald Trump, the Occupational Safety and Health Administration (OSHA) issued a massive 513-page final rule last November revising and updating its general industry standards on walking-working surfaces, including ramps, ladders, gangways, roofs, and other surfaces. While this rulemaking has been in the works since the 1990s, the original 293-page proposed rule was published in May 2010. Now, without any advance warning, OSHA promulgated the final rule and provided only 60 days for compliance.

The final rule includes new and revised provisions addressing fixed ladders, rope descent systems, fall protection systems and criteria, and training. In addition, the final rule adds requirements on the design, performance, and use of personal fall protection systems.

In commenting on the new rule, outgoing OSHA Administrator Dr. David Michaels said that the “rule will increase workplace protection from those hazards, especially fall hazards, which are a leading cause of worker deaths and injuries…OSHA believes advances in technology and greater flexibility will reduce worker deaths and injuries from falls.” Michaels indicated that the rule should also increase the “consistency between general and construction industries, which will help employers and workers that work in both industries.”

According to OSHA, the “rule’s most significant update is allowing employers to select the fall protection system that works best for them, choosing from a range of accepted options, including personal fall protection systems. OSHA has permitted the use of personal fall protection systems in the construction industry since 1994 and the final rule adopts similar requirements for general industry. Other changes include allowing employers to use rope descent systems up to 300 feet above a lower level, prohibiting the use of body belts as part of a personal fall arrest system, and requiring worker training on personal fall protection systems and fall equipment.”

The new standard will affect 6.9 million establishments that employ 112 million individuals. OSHA also found that the ladder training will apply to 5.2 million employees engaged in the construction, installation, maintenance, repair, and moving operations in general industry. Excluded from the new rules are employees that are outside of OSHA’s jurisdiction due to location or operational status, such as Department of Transportation (railroad and trucking) responsibilities or those that are subject to unique industry specific fall protection standards, such as telecommunication and electric power generation, transmission, and distribution.

OSHA estimates that full compliance with this rule will prevent over 5,800 injuries and 29 fatalities per year.

Rule Timeline
The rule went into effect on January 17, 2017, providing employers very little time to come into compliance. However, some of the provisions have delayed effective dates, including:

• Training employees on fall and equipment hazards – May 17, 2017;
• Ensuring exposed workers are trained on fall hazards and workers who use equipment covered by the final rule are trained – July 17, 2017;
• Inspecting and certifying permanent anchorages for rope descent systems – November 20, 2017;
• Installing personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and on replacement ladders/ladder sections, including fixed ladders on outdoor advertising structures – November 19, 2018;
• Ensuring existing fixed ladders over 24 feet, including those on outdoor advertising structures, are equipped with a cage, well, personal fall arrest system, or ladder safety system – November 19, 2018; and
• Replacing cages and wells (used as fall protection) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet – November 18, 2036.

For employers, compliance of this rule will represent a significant challenge, particularly in light of the effective date of the regulation. In addition, it will require employers to meet these requirements for outside contractors, temporary employees, and leased employees who may be at the worksite under OSHA’s multiemployer worksite doctrine. OSHA’s rule was published with a fact sheet and answers to questions.

Congressional Review
The new rule could come under review by the Trump administration or be subject to the Congressional Review Act (CRA), in which lawmakers have 60 legislative days to overturn a regulation from the current or, as in this case, previous administration. If lawmakers are not in session for a full 60 days after enactment of the new rule before adjourning their final session, the clock resets, and the new Congress is given another 60 days to act on the new rule. The only time the CRA was used was in 2001 to overturn an OSHA standard on ergonomics that had been implemented in the final days of President Bill Clinton’s administration.

For questions on this rule, contact Mark Lies II.

February 2017 RENDER | back